Howard v. Canadian Natl/IL

*Pursuant to 5TH CIR. R. 47.5 the Court has determined that this
opinion should not be published and is not precedent except under
the limited circumstances set forth in 5TH CIR. R. 47.5.4.
United States Court of Appeals
Fifth Circuit
F I L E D
May 24, 2007
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 06-30747
SAMUEL J. HOWARD,
Plaintiff-Appellant,
versus
CANADIAN NATIONAL/ILLINOIS
CENTRAL RAILROAD,
Defendant-Appellee.
Appeal from the United States District Court
for the Middle District of Louisiana
(03-CV-366)
Before GARWOOD, SMITH and DEMOSS, Circuit Judges.
GARWOOD, Circuit Judge:*
Plaintiff-appellant Samuel Howard (Howard) brought this suit
in May 2003 against defendant-appellee Canadian National/Illinois
Central Railroad (the railroad) under the Federal Employers’
Liability Act (FELA), 45 U.S.C. §§ 51 et seq., for personal
injuries sustained on October 19, 2001, when, in the course of his
employment with the railroad, he allegedly injured his back while

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aligning or throwing one of the railroad’s switches which was
overly stiff and difficult to thus align or throw.
The district court granted the railroad’s motion for summary
judgment, concluding that Howard had failed to present sufficient
summary judgment evidence that the switch was defective or not
properly functioning or had not been properly maintained or that
the railroad was negligent in that it knew or should have known of
or prevented that condition. The district court accordingly
dismissed Howard’s suit with prejudice.
Howard appeals that ruling.
In a FELA case the plaintiff’s burden of proof is
“featherweight” and “[o]ur precedents clearly establish that in
this Circuit, a judgment as a matter of law against the plaintiff
in a FELA suit is appropriate ‘only when there is a complete
absence of probative facts’ supporting the plaintiff’s position.”
Rivera v. Union R. Co., 378 F.3d 502, 506 (5th Cir. 2004) (citation
omitted).
As we noted in Boeing Company v. Shipman, 411 F.2d 365 (5th
Cir. 1969) (en banc), overruled in other respects, Gautreaux v.
Scurlock Marine, 107 F.3d 331, 336 (5th Cir. 1997) (en banc), the
FELA “complete absence of probative facts” standard is in sharp
contrast to the more demanding test applicable in other civil
cases, namely that “[o]n motions for directed verdict . . . the
Court should consider all the evidence – not just that which

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supports the non-mover’s case – . . . A mere scintilla of evidence
is insufficient to present a question for the jury. . . . There
must be a conflict in substantial evidence to create a jury
question.” Boeing at 374-75. On the other hand, “the
congressional intent in enacting the FELA was to secure jury
determinations in a larger proportion of cases than would be true
of ordinary common law actions . . . ‘trial by jury is part of the
remedy in FELA cases.’” Id. at 371 (citation omitted). Under the
FELA, “‘the jury’s power to engage in inferences must be recognized
as being significantly broader than in common law negligence
actions.’” Id. (quoting with approval Chicago, Rock Island and
Pacific Railroad Co. v. Melcher, 333 F.2d 996, 999-1000 (8th Cir.
1964). Moreover, in Boeing we observed “the test of sufficiency of
the evidence in FELA cases is very much like the Alabama rule which
provides that if there is a scintilla of evidence a jury question
is presented.” Id. at 373 n.9.
Having considered the arguments of counsel, the briefs of the
parties and the record, we conclude that there is not a complete
absence of evidence supporting Howard’s position, that Howard’s
affidavit and deposition include some such evidence (at least when
considered in connection with the railroad’s failure to produce any
relevant maintenance records and that its affidavits were somewhat

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1 We of course express no opinion as to the sufficiency or
effect of the evidence that may actually be admitted at trial as it
may vary from what the present record reflects.
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impeached).1 With respect to the railroad’s complaints that the
district court erred in allowing Howard further discovery and in
not striking his affidavit, we find no abuse of discretion.
The judgment is REVERSED and the cause is REMANDED for further
proceedings.
REVERSED and REMANDED.

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